Appeals court bars counting of late absentees

November 14, 2006|By Andrea F. Siegel | Andrea F. Siegel,sun reporter

Maryland's highest court ruled yesterday that absentee ballots postmarked one day late will not be counted, a victory for state elections officials and a defeat for voters who didn't receive their absentee ballots until the Nov. 6 postmark deadline for returning them.

The Maryland Court of Appeals ruling came less than three hours after the seven judges held an emergency hearing on a voter appeal of a ruling last week by an Anne Arundel County judge. Elections officials do not know how many people received absentee ballots on Nov. 6 and sent them back on Election Day, Nov. 7.

"We will proceed with the counting of the rest of the absentee ballots in accordance with the court order," said Donna Duncan, director of election management for the State Board of Elections.

Those who brought the lawsuit expressed disappointment.

"We obviously think the court got it wrong," said David Rocah, staff attorney for the American Civil Liberties Union of Maryland, one of three organizations that filed the appeal. "We thought and continue to think that people who did everything to comply with getting an absentee ballot were disenfranchised."

There also are people who have yet to receive the absentee ballot they requested, Rocah said.

"Clearly the mechanism by which the board gets its absentee ballots to people is flawed," he said.

After major voting machine-related problems in the September primary, Gov. Robert L. Ehrlich Jr. and other officials urged voters to cast absentee ballots for the Nov. 7 general election. The upshot was that elections officials were flooded with absentee requests this year - 193,000 in all, or three times the number cast in 2002 and far more than they were prepared to print and send. That led to delays in mailing the absentee ballots and complaints from frustrated would-be absentee voters.

A lawsuit to extend the postmark deadline followed, but the state won Nov. 6 in Anne Arundel County Circuit Court.

Yesterday's hearing in Annapolis was on an appeal of that ruling on behalf of a Baltimore County resident, Melisande C. Fritszche, who attends the Rochester Institute of Technology. She returned to her student housing in New York state at 8:50 p.m. Nov. 6 to find the absentee ballot she had requested in August. That was too late for her to get a Nov. 6 postmark at her campus post office and she did not know where to find an open post office so late.

But judges seemed skeptical of arguments made on her behalf.

"You can't show that someone won or lost in Baltimore County by one vote," said retired Judge John C. Eldridge, who substituted for another judge on the case.

Assistant Attorney General William Brockman, arguing for the State Board of Elections, contended that extending the deadline would create a chaotic situation and would "lead to unmanageable consequences in every election."

He argued that counting ballots postmarked Nov. 7 was unlikely to change the results of any election, that nobody knows how many absentee ballots are involved, and that the state was coping with a large number of absentee requests.

But Daniel Joseph, a private attorney representing Fritszche, disagreed.

"This is a case involving the right to vote. There is no more important right," Joseph told the judges.

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